I have considered all matters put to me in submissions, together with the relevant sections in the Act and relevant portions of the Magistrates' Court Criminal Procedure Rules. I have read the second reading speech for this legislation and the statement of compatibility for the Criminal Procedure Bill; also the Criminal Procedure Act 2009 Legislative Guide published by the Department of Justice.
First I will consider the issue of service of the charges themselves. It is clear from the accused's evidence and the documents he produced to the Court that he received a complete copy of each of the three charges. He was left in no doubt as to what was alleged against him. Section 6 of the Act deals with the commencement of a criminal proceeding in the Magistrates' Court. Subsection (1)(a) states that one way by which a criminal proceeding can be commenced is by filing a charge sheet containing a charge with the registrar of the Magistrates' Court.
Looking then at section 12 of that Act and subsection (1) and summarising that to what is relevant for these proceedings - it says that on the filing of a charge sheet under section 6, an application may be made to a registrar of the Magistrates' Court for the issue of, an either - in (1)(a) a summons or - what is relevant here - (b) a warrant to arrest in order to compel the attendance of the accused. Accordingly, it's clear that the warrant to arrest was sought after the charges were filed.
In my view this lends supports to Mr Vincent's submission that the first page of the charge and warrant to arrest is not part of the charges themselves. However, I also take the point made by Mr Guss that there are words printed near the top of that first page, that is, the page headed Charge and Warrant to Arrest, which are directed to the accused person to whom the charges relate, and that supports his contention that the page was intended to have been served on the accused.
The second point to consider is the failure to serve the notice set out in form 8 of the Rules. Now, in relation to those points - so the service of the charge and warrant, the service of the notice - the language used by section 13 of the Act clearly states - and again I summarise it to what is relevant - a warrant to arrest issued under section 12 on execution on the accused must be accompanied by (a) a copy of the charge sheet and (b) a notice in the form prescribed by the court. I read that provision as requiring a service of the warrant to arrest, a copy of the charge sheet and the notice - which is form 8 in the Rules - on the accused at the time the warrant is executed.
The warrant and the form 8 document were not served on the accused here so the question remains was that omission by the police fatal to the charges. The statement of compatibility tabled with respect to the Criminal Procedure Bill identified what is now section 13 of the Act as one of a number of sections which would "provide for appropriate levels of information to be given". Under section 25, subsection (2) of the Charter of Human Rights and Responsibilities Act of 2006, "a person charged with a criminal offence is entitled without discrimination to the following guarantees". A number of matters are then listed.
The statement of compatibility for the Criminal Procedure Bill referred specifically to section 25, subsection (2)(a) of the Charter, stating that, "a person charged with an offence is entitled to be informed of the nature and cause of the charge in detail and promptly. The purpose of this section is to ensure that the accused is told in a timely manner what he or she is charged with and why". I have already found that the accused was provided with copies of the three charges when the warrant was executed, and therefore that information was provided promptly.
No authorities were put forward by either party about any of the issues raised during submissions and I have been unable to find any authorities directly on point. I have read a number of Supreme Court decisions made in relation to a variety of issues about service under the previous legislation. In this case, the act requires certain things be provided at the time the warrant was executed, not all of which were provided to him. But the Act does not go on to indicate whether failure to comply in full with those requirements would be fatal to the proceedings.
Mr Guss raised the defect in service on both occasions this matter has been before me. At no stage has the accused waived the defect in service of which he has complained. However, it was always clear to him what charges he was facing and when and where he was required to appear at court. Details of the prosecuting agency and the contact details of the relevant person to contact there if need be were included on the charges.
I was also told on the last occasion that Mr Vincent had that morning, given the documents that had been required to be served to Mr Guss. So all documents which were required to be served had by then been provided. While it is far from satisfactory that section 13 of the Act was not originally complied with in its entirety, the accused received all three charges and details of the prosecuting agency, details of when and where to be at court, and the merits of those charges have not yet been heard by the court. He has since been provided with the additional information material. On the face of it he has suffered no prejudice in terms of his being able to be prepared for a hearing into these matters. I also note the decision of the then Hayne J of the Supreme Court of Victoria, in Nitz, ... and Evans ... at 19 MVR at p 55, which dealt with a defect in service on a defendant. While the facts and legislation differ from the matter before me, there nonetheless was a defect in service in terms of whether the defendant received the correct documentation. The magistrate hearing the charge proceeded ex parte, even though the accused had continued to complain of the defect in service. His Honour Hayne J held that the magistrate should not have gone on to hear and determine the charge until the defendant had been properly served as the Act required.
That decision, in my view, provides support for my decision here that the accused matter should proceed given that he has now been provided with all required documentation. The application to dismiss the charges is refused.